Colgrove v. Solomon

• Decision Date: 10 October 1876
• Citation: 34 Mich. 494
• Court: Michigan Supreme Court
• Parties: Sarah A. Colgrove v. John J. Solomon. [*]

34 Mich. 494

Sarah A. Colgrove v. John J. Solomon. ^[*]

Supreme Court of Michigan

October 10, 1876

Heard June 20, 1876 [Syllabus Material]

Error to Kalamazoo Circuit.

Cause reversed, with costs.

O Tuthill and Arthur Brown, for plaintiff in error, to the point that it was not competent to set up in defense to the action a partly performed parol contract to receive payment in land, cited: Browne Stat. Frauds, § 451; O'Herlihy v. Hedges, 1 Sch. & Lef., 123; Kelley v. Webster, 12 C. B., 283; Freeport v. Bartol 3 Greenl. 345; Patterson v. Cunningham, 2 Fairf. 512; Norton v. Preston, 15 Me. 16; Newell v. Newell, 13 Vt. 24; Kidder v. Hunt, 1 Pick. 331; Thompson v. Gould, 20 Pick. 338; Adams v. Townsend, 1 Met. 485; Eaton v. Whittiker, 18 Conn. 231; Thomas v. Dickinson, 14 Barb. 90; Abbott v. Draper, 4 Denio 52; Seymour v. Davis, 2 Sand. 245; Henderson v. Hayes, 2 Watts 148; Sailors v. Gambril, 1 Smith, Ind., 81; Davis v. Moore, 9 Rich. (S. C.), 215; Pike v. Morey, 32 Vt. 37; Hunt v. Coe, 15 Iowa 197; 3 Pars. Con., 350; Scott v. Bush, 26 Mich 420; Cook v. Bell, 18 Mich. 393; that the acts of part performance, to be sufficient, in equity even, to authorize the specific enforcement of a parol contract to purchase land, must be directly in prejudice of the party doing the act, and not ancillary or preparatory merely, nor such as can be compensated in damages: Browne Stat. Frauds, § 460; 3 Pars. Cont., 60; that what Solomon did in performance of the agreement was in no way to his prejudice beyond what an action for damages would fully remedy, and such mere preliminary negotiations and arrangements as conferred no rights and constituted in no sense a binding contract, at least without the subsequent assent of both parties: 26 Mich. 420; 10 Mich. 219; 11 Mich. 494; 14 Mich. 238; 20 Mich. 410; 38 Penn. 147; that the doctrine of part performance is held in disfavor, and will not be extended: German v. Machin, 6 Paige 288; that all attempts to make the rule of part performance operate at law the same as in equity have wholly failed: 3 Pars. Cont., 59; Davenport v. Mason, 15 Mass. 85; Baldwin v. Palmer, 10 N. Y., 232; Cagger v. Lansing, 23 N. Y., 550; Day v. N. Y. C. R. R. Co., 51 N. Y., 591; Dung v. Parker, 52 N. Y., 497.

Severens, Boudeman & Turner, for defendant in error, argued that the discharge of the mortgage on the Alanson land by defendant was such a part performance on his part as took the case out of the statute of frauds and made the contract a valid one and binding upon the plaintiff; and to the point that anything done under the contract which would render it impracticable to place the parties in statu quo is a sufficient part performance to take the case out of the statute, on the ground that to refuse performance would amount to a fraud cited: Adams Eq, 202, and cases cited; Browne Stat. Frauds, § 448; Richmond v. Foote, 3 Lans. 244; Lowry v. Tew, 3 Barb. Ch., 413; that defendant, having discharged the mortgage, could not be restored to his former position by recision of the contract; that the plaintiff could not rescind the contract, even had defendant neglected to deliver any deed at the very time agreed upon, time not being an essential element of the contract; and that it is a well established rule that a contract cannot be rescinded by one party for the fault of the other, unless both can be placed in the same situation in which they stood previous to the contract: Chance v. Comr's of Clay Co., 5 Blakf. (Ind.), 441; Calhoun v. Davis, 2 Ind. 532; Peter v. Hunders, 19 Ind. 93; McGuin v. Callman, 18 Ind. 128; Moore v. Rare, 1 Iowa 198; Griffith v. Ford Co. Bank, 9 Gill & J. (Md.), 142; Brown v. Witter, 10 Ohio 142; Barrett v. Stanton, 2 Ala. 181; Peters v. Roberts, 6 Ala. 9-11; Conner v. Henderson, 15 Mass. 319; Hammond v. Buckmaster, 22 Vt. 375; 2 Pars. on Cont. (5th ed.), 678-9; Burge v. Cedar Rapids, etc., R. R. Co., 32 Iowa 101; Jarett v. Morton, 44 Mo. 275; Ellington v. King, 49 Ill. 449; that plaintiff, if entitled to rescind, must notify defendant of his intention so to do before the latter performs his part of the contract: Hooper v. Taylor, 4 E. D. Smith, 486; Carney v. Newberry, 24 Ill. 203; Mallin v. Bloomer, 11 Iowa 360; Davis v. Downs, 4 Mich. 350.

OPINION

Graves, J.

Mrs. Colgrove brought her action for money had and received, to recover a sum she had paid Mr. Solomon as purchase money on a land trade which had been rescinded, and he was allowed to succeed before the jury under a defense grounded upon a subsequent agreement, and things done in connection with it, to repay her partly in cash and partly in land.

She now asks a review of the proceedings. A reference to the main circumstances is necessary. She agreed to buy of Solomon eighty acres of land for two thousand five hundred dollars, and on March 3, 1873, he deeded to her. She gave back certain securities and paid one thousand five hundred dollars in cash. She soon found cause to be dissatisfied with the title, and by mutual consent the trade was canceled. She reconveyed, but Solomon did not restore the money. He claimed that he could not then command it, and proposed to secure by mortgage the refunding of it. This proposal fell through. He then suggested as an expedient, to pay four hundred dollars in cash and the residue of eleven hundred dollars in a piece of land owned by one Mrs. Alanson. The parties were at Dr. Harrison's and the negotiation and bargaining were entirely oral. The doctor seems to have been a trusted acquaintance of Mr. Solomon and a friendly adviser of Mrs. Colgrove. Both parties seem to have looked somewhat to him to aid in bringing about an adjustment, and Mrs. Colgrove sought his help and advice more or less in the matter. His intervention appears to have been merely casual, and in the spirit of friendly accommodation only. He had no written power from either side.

The Alanson parcel was burdened with two mortgages, one belonging to Solomon, and one for five hundred dollars owned by a third party, and Solomon desired that possession of the land should be detained until the first of October following. The property itself was valued at sixteen hundred dollars subject to such detention, and at eleven hundred dollars subject both to such detention and the mortgage for five hundred dollars. It was therefore considered that the land burdened with this last mortgage, and with the right of possession in another until October, was equivalent to eleven hundred dollars. In this state of things it was orally agreed that Solomon should pay Mrs. Colgrove four hundred dollars in cash, and cause the Alansons to deed to her the parcel in question, subject to the mortgage for five hundred dollars, and with a reservation of possession until October.

Solomon paid the four hundred dollars in cash, and acknowledged satisfaction on the record of his mortgage on the Alanson property, and in a short time he forwarded to Doctor Harrison a deed made by the Alansons. This deed was attested by only one witness, and contained a reservation of possession until October, and a further one of all crops growing at the date of the deed and also of all crops produced before October. The doctor objected to the deed on the ground that it had but one witness, and pointed out some trifling inaccuracies besides, but said nothing about the reservation of the crops. He returned the deed and advised the making of a new one. This instrument was therefore not accepted by any body. Mrs. Colgrove presently decided that she would not carry out the verbal agreement and would not take the Alanson land. She so wrote to Dr. Harrison. Following this, a second deed from the Alansons to Mrs. Colgrove was sent by Solomon to Dr. Harrison. This instrument contained the same reservation in regard to crops as the first. Dr. Harrison sent it to Mrs. Colgrove and she refused to accept it, and handed it to her attorney. The proof is clear and uncontradicted that she did not and would not accept it. If the court erred in permitting the defense tendered by Solomon to prevail, it is then evident that Mrs. Colgrove was entitled to recover the money remaining back. Indeed, this is not disputed.

We think that the main rulings of the circuit judge proceeded on mistaken views of the law applicable to the case, and were plainly erroneous and misleading. We shall not take up separately the various propositions stated and refused. We may observe, however, that, among other matters, he authorized the jury to imply from the evidence that Doctor Harrison was Mrs. Colgrove's lawful agent to convert without writing her verbal and invalid bargain into one valid and obligatory; and further, that he gave the jury to understand that in view of the bargain and her situation in relation to it, she would be bound by it, unless there appeared a state of facts amounting to a recision of it. Now, it is entirely clear that since her bargain was an oral one it was not binding upon her at all. And it is equally clear that the acts and sayings of Doctor Harrison were not superior in force to her own verbal proceedings. He had no written power and entered into no writing. If in any proper sense he was her representative to make or validate any contract, he was no more able without writing than she was in person to bring her into binding contract relations as vendee.

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